Acetaminophen, social media addiction cases go before consolidation panel

  • Judicial panel determining multidistrict litigation will weigh lawsuits alleging link between acetaminophen and autism
  • Will also consider cases claiming Meta Platforms’ apps are intentionally designed to foster addiction
  • Two proposed environmental MDLs face strong opposition

(Reuters) – The Judicial Panel on Multidistrict Litigation will meet today in St. Louis to consider creating nationwide MDLs for three fast-growing areas of product-liability litigation: social media addiction lawsuits, primarily against Facebook and Instagram’s parent Meta Platforms Inc; claims that acetaminophen use during pregnancy increases the child’s risk of autism-spectrum disorders and ADHD; and cases spurred by Exactech Inc’s recent recalls of many of its knee, ankle and hip-replacement products.

The panel also will consider two highly contested petitions in environmental cases: one by the US Postal Service, which is battling blue states, green groups and the United Auto Workers over its decision to stick with mostly gas-powered delivery vehicles; the other filed by the Klamath Irrigation District to consolidate seven lawsuits over water use in the drought-stricken district.

MDL no. 3043 − IN RE: ACETAMINOPHEN − ASD/ADHD PRODUCTS LIABILITY LITIGATIONDozens of lawsuits have been filed in the past year, quoting recent studies that link pregnant women’s use of acetaminophen to an increased risk of autism spectrum disorders (ASD) and ADHD in their children. In June, plaintiff Aujenai Thompson sought to consolidate 19 actions against the sellers of “store-brand” acetaminophen products for pretrial coordination or consolidation. Since then, more than 30 related actions have been filed, naming Costco Wholesale Corp, CVS Pharmacy Inc, Rite Aid Corp, Safeway, Target Corp, Walgreen Co and Walmart Inc as defendants.

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Thompson alleges that the retailers failed to warn pregnant users of their store-brand acetaminophen products about the neurological risks to the fetus. The motion proposes consolidation before any “capable transferee judge” selected by the JPML.

All the defendants oppose consolidation, saying the manufacturers of Tylenol and the generic store-brand equivalents are “conspicuously missing” from any actions in the proposed MDL and are necessary parties.

The defendants also argue that their products are safe and properly labeled under federal law; and that an MDL would be inefficient because the plaintiffs’ alleged injuries are “highly plaintiff-specific,” both as to cause and effects.

Several of the retailers also oppose an “industry-wide” MDL — in which competing companies would be lumped together as defendants — although Target and Walmart say a retailer-specific MDL might be an option.

For moving Aujenai Thompson: Mikal Watts of Watts Guerra

For Costco, CVS and Walgreen: Nadine Kohane of Barnes & Thornburg

For Rite Aid: James Link of Baraban & Teske

For Safeway: Amanda Groves of Winston & Strawn

For Target: Purvi Patel of Morrison & Foerster

For Walmart: Donald Zimmer Jr of King & Spalding

MDL no. 3047 − IN RE: SOCIAL MEDIA ADOLESCENT ADDICTION/PERSONAL INJURY PRODUCTS LIABILITY LITIGATION

The JPML will consider pretrial consolidation for about 75 lawsuits alleging that social media hubs are intentionally designed to foster addiction, which causes mental health problems for children, and that the companies “fail to warn minor users and their parents about the risks posed by the products .”

Facebook, Instagram and parent company Meta Platforms are defendants in nearly all the lawsuits. Many also name Snap Inc’s Snapchat, ByteDance Ltd’s TikTok, or Alphabet Inc’s YouTube. All the actions were filed after former Facebook employee Frances Haugen tested before Congress last fall, saying “internal Meta documents show that Defendants were aware of the harm its products cause users, especially female children and adolescents,” an attorney for plaintiff Brianna Murden wrote in the motion for consolidation.

Murden, 21, started using Facebook and Instagram at age 10 and developed “social media compulsion, disordered eating, depression, body dysmorphic disorder, multiple periods of suicidal ideation, severe anxiety,” and other injuries as a result, the Aug. 1 motion says. The 27 other lawsuits filed at that point assert “nearly identical factual allegations and legal claims,” her attorney wrote.

Murden suggests assigning the MDL to US District Judge Sara Ellis in Chicago or US District Court Judge Stephen Bough, based on their judicial experience, their courts’ central locations, and their fast resolution of pending cases.

Meta supports consolidation of all cases — including those against Snapchat, TikTok and YouTube — as the fastest way to resolve “cross-cutting” issues, including defenses to liability under the Communications Decency Act and the Free Speech clause of the 1st Amendment. However, it says the MDL should be assigned to a less-busy court – specifically, either of Kentucky’s federal districts, the Middle District of Florida or the Northern District of Georgia.

Snapchat, TikTok and YouTube oppose consolidation, saying their services have little in common with Facebook or Instagram. A “behemoth, industry-wide MDL involving all ‘social media’ platforms” also would be “far too broad, and the weight of such an MDL would crush our federal judiciary,” TikTok’s opposition brief says.

For moving Brianna Murden: Joseph VanZandt of Beasley Allen Crow Methvin Portis & Miles

For Meta Platforms: Phyllis Jones of Covington & Burling

For Snap and Snapchat: Jonathan Blavin of Munger, Tolles & Olson

For ByteDance and TikTok: Albert Giang of King & Spalding

For Alphabet, Google & YouTube: Brian Willen of Wilson Sonsini Goodrich & Rosati

MDL no. 3044 − IN RE: EXACTECH POLYETHYLENE ORTHOPEDIC PRODUCTS LIABILITY LITIGATION

A group of plaintiffs whose knee, ankle or hip implants failed prematurely, requiring further surgery, asked the JPML in June to consolidate 27 pending cases against the manufacturer, Exactech Inc. As of Tuesday, the number of cases had grown to 73 – and the plaintiffs expect it will go higher, since Exactech has recalled about 200,000 polyethylene knee, ankle and hip devices since August 2021.

According to Exactech’s response, it initiated the recalls after finding a few instances of premature wear in Optetrak knee-replacement components that were stored for about five years before being implanted.

The company concluded that “off-specification” packaging was to blame, and that it might not protect the device’s polyethylene components against oxidation for their full eight-year shelf life. The plaintiffs allege that the products also may suffer from design defects.

In addition to Optetrak, the recalled products include several years’ models of Optetrak Logic and Truliant knee replacement systems, Exactech Vantage ankle devices, the Connexion GXL acetabular liner and seven other polyethylene hip liners.

The plaintiffs’ motion for consolidation asks the JPML to assign the cases to US District Judge Kiyo Matsumoto in the Eastern District of New York, noting that Exactech developed the Optetrak device at the Hospital for Special Surgery in Brooklyn, and that it “was likely implanted in more New York area residents than anywhere else.”

Exactech supports consolidation, but says the cases should be assigned to US District Judge Paul Engelmayer in Manhattan or US District Judge Sarah Vance in New Orleans, based on their prior experience overseeing medical-products MDLs.

For movers Alexander and Rona Berger: Ellen Relkin of Weitz & Luxenberg

For Exactech: Kim Schmid of Bowman and Brooke

MDL no. 3046 − IN RE: US POSTAL SERVICE’S NEXT GENERATION DELIVERY VEHICLE ACQUISITIONS PROGRAM RECORD OF DECISION LITIGATION

The US Postal Service has asked the JPML to consolidate three actions challenging its decision to stick primarily to gasoline-powered trucks as it replaces its existing delivery vehicles, which make up about a third of the federal government’s fleet.

USPS in March finalized a decision to purchase up to 165,000 vehicles over the next 10 years, with at least 10% electric vehicles (EVs). It then placed an initial $2.98 billion order for 50,000 vehicles, including 10,000 EVs.

California and 15 other states, plus the District of Columbia and New York City, sued to block the plan in federal court in San Francisco on April 28. So did CleanAirNow, the Center for Biological Diversity and the Sierra Club. The Natural Resources Defense Council and the United Auto Workers jointly filed the third action in federal court in New York.

The lawsuits accuse USPS of using a flawed and unlawful environmental analysis and signing contracts before it had completed a draft environmental review.

USPS wants the suits consolidated in federal court in Washington, DC, primarily to avoid inconsistent decisions that could “severely disrupt” implementation of its 10-year plan.

In particular, USPS wants a single judge to put all three lawsuits on hold while it drafts a supplementary environmental impact statement to reflect its shift to a more hub-based system of routes. USPS expects the change, which it announced in May, to increase the usefulness of EVs and make it easier to keep them charged, resulting in substantially more EV purchases.

However, USPS has not withdrawn the existing 10-year acquisition program, the challengers note. They oppose creation of an MDL, saying it is unnecessary for three lawsuits – two of which are proceeding before the same magistrate judge – and all of which will be based on the administrative record, leaving little if any need for additional discovery or other pretrial procedures .

For moving US Postal Service and Postmaster General Louis DeJoy: Timothy Bishop and Avi Kupfer of Mayer Brown

For California and the states: Stacy Lau of the California Attorney General’s Office

For CleanAirNow, and Sierra Club et al: Adriano Martinez of Earthjustice

For the Natural Resources Defense Counsel and UAW: Francis Sturges and Thomas Zimpleman of NRDC

MDL no. 3048 – IN RE: KLAMATH RIVER BASIN LITIGATION

The Klamath Irrigation District (KID) in Oregon is seeking partners in its ongoing litigation against the US Interior Department’s Bureau of Reclamation, over competing water rights in the drought-stricken Klamath River Basin between Southern Oregon and Northern California.

KID’s lawsuit accuses the federal agency of releasing state-owned water from Upper Klamath Lake into the Klamath River, to protect coho salmon and two kinds of sucker fish. The Bureau argues that it had a superior right to do so under the Endangered Species Act.

KID is seeking MDL treatment for six other lawsuits over Upper Klamath Lake’s water rights, based on state laws, contracts, the Religious Freedom Restoration Act, the US Constitution, commercial fishing rights and the Yurok and Klamath Tribes’ rights to use the river for subsistence , cultural, religious, and commercial purposes.

“(I)t will be far easier, and more convenient, to reach a global resolution of these interrelated claims if all parties are forced to litigate in a single, neutral forum,” KID’s attorneys wrote in the motion for consolidation.

To ensure neutrality, KID suggests assigning the MDL to Chief US District Judge William Johnson of New Mexico or to US District Judge Roger Jones of Nevada, both of whom have experience dealing with comprehensive water-rights litigation.

The Bureau and most of the other parties oppose consolidation, saying the cases are too few in number, too different from each other, and too far advanced to benefit from an MDL. Five of the seven actions are expected to be resolved soon, the opponents said.

They also object to litigating in New Mexico or Nevada, before “entirely new districts and new judges – hundreds of miles away from the geographic locus of the dispute, the evidence, and any witnesses – who would require significant time to come up to speed on the issues presented,” the Bureau’s opposition brief said.

For moving Klamath Irrigation District: John Kinsey of Wanger Jones Helsley; and Nathan Rietmann of Rietmann Law

For the US Bureau of Reclamation: Todd Kim and Thomas Snodgrass of the US Department of Justice

For Yurok Tribe, Institute for Fisheries Resources and Pacific Coast Federation of Fishermen’s Associations: Patti Goldman of Earthjustice

For Oregon Water Resources Board: Sara Van Loh of the Oregon Justice Department

For Klamath Tribes: Jay Weiner of Rosette

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Source: https://www.reuters.com/legal/litigation/acetaminophen-social-media-addiction-cases-go-before-consolidation-panel-2022-09-29/

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